Outer House case concerning a boundary dispute relating to two properties on Sixth Street in Newtongrange.  Mr Smith (the owner of  no. 77) claimed that Mr and Mrs Crombie (the owners of no. 75) had removed a fence which divided the two rear gardens and replaced it with an extension and another fence encroaching onto Mr Smith’s  land. He sought removal of the extension and fence and their replacement with a new fence.

The fence had originally been erected to replace a boundary hedge in 1986 following an agreement between Mr Smith and the previous owners of no. 75. However, on the evidence, Lord Matthew found that the original fence had encroached onto no. 75.  Although Mr Smith had possessed the property bounded by the original fence for at least the prescriptive period, the fence was clearly outwith the boundary shown on Mr Smith’s title. As there was insufficient ambiguity, prescription could not run.

Lord Mathew also indicated that, if he had found in favour of Mr Smith, he would not have ordered demolition of the extension as, to do so, would have been disproportionate given the very limited nature of the encroachment. However, he would have ordered demolition of the new fence.

The full judgement is available from Scottish Courts here

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Supreme Court case considering an appeal from the Inner House which upheld the planning authority’s decision to grant permission for an Asda Store at a site in Myrekirk Road in Dundee.

Tesco (which owns a store 800m from the proposed site) argued that the planning committee had failed to properly apply the “sequential test” (which involves considering suitable alternative sites for development from the town centre outwards) which was set out in the development plan and planning policy. Tesco also claimed that the planning committee had failed to consider its own policy in respect of the Lochee district. (There was an alternative site in Lochee which the Council had discounted as being too small.)

The Supreme Court refused the appeal. The argument centred on the meaning of the word “suitable” which Tesco contended meant “suitable for meeting identified deficiencies in retail provision in the area”. The Supreme Court found that the Council had been correct to proceed on the basis that the word “suitable” meant “suitable for the development proposed by the applicant” but this was subject to the qualification that flexibility and realism must be shown by developers.

Asda had followed a flexible approach but did not regard the Lochee site as suitable for their needs. In accepting that assessment, the Council had exercised their judgment as to how the policy should be applied to the facts and had not proceeded on an erroneous understanding of the policy.

Lord Reed observed that an error by the planning authority in interpreting its policies would be material only if there was a real possibility that their determination might otherwise have been different and he was not persuaded that there was such a possibility in this case.

With regard to a planning authority’s exercise of discretion, Lord Reed also noted:

 “planning authorities do not live in the world of Humpty Dumpty:  they cannot make the development plan mean whatever they would like it to mean.”

The full judgement is available from the Supreme Court here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Case in which the Portobello Park Action Group Association sought Judicial Review of the City of Edinburgh Council’s decision to appropriate part of Portobello Park in order to site a new Portobello High School. The action group argued that it was unlawful for the Council to appropriate the park, which is common good land, and even if they were, they were not entitled to do so without the permission of the court.

Although it was unclear exactly when the decision to appropriate the park had been reached, Lady Dorrian found that “at the very latest” the decision had been made in March 2010. As the action group did not bring the case until July 2011, there had been considerable delay which was indicative of taciturnity and acquiescence and Lady Dorrian dismissed the petition on the basis that a plea of mora had been established.

Although the successful plea of mora meant that it was not necessary to reach a judgement on the Council’s decision, Lady Dorrian indicated that if she had been required to do so, she would have found that the Council does have the power to appropriate inalienable common good land.   The Council’s powers in relation to appropriation and disposal of land are contained in sections 73 to 75 of the Local Government (Scotland) Act 1973. Lady Dorrian observed:

“Section 73 of the 1973 Act gives a local authority the widest powers to appropriate for the purpose of any function land vested in them for the purpose of any other function[1]… An equally wide general power of disposal is given under section 74, subject to a requirement to obtain the best price. Section 75 of the 1973 Act does two things. By subsection (1) it makes it clear that the provisions regarding appropriation or disposal of land apply to common good land where there is no question arising as to the right to alienate. Where such a question arises, under subsection (2) the power of disposal is limited, in that a local authority may only dispose of such land with the authority of, and subject to any conditions imposed by, the court. The power to appropriate such land remains unfettered.”

The full judgement is available from Scottish Courts here.

(NB: See appeal to Inner House)

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Outer House case considering a claim for damages under the Occupiers Liability (Scotland) Act 1960. Mr Dawson worked as a self employed courier and was delivering a package to Ms Page’s cottage. Building works were taking place at the cottage and the surroundings resembled a building site.  After making two unsuccessful visits to the cottage to deliver the package, Mr Dawson left the package under an oil storage tank in the back garden. As he was leaving the cottage he slipped on a wet plank over a trench in the garden and injured his hand.

Mr Dawson’s claim for damages failed because the wet plank did not constitute a danger, and, even if it did, there was no requirement on Ms Page to exclude people from the site or give warning of the risks.

Lord Glennie observed:

“Wet planks may be slippery. A notice is not required to point that out. Such dangers, if they be dangers, send out their own warning. The pursuer observed that the plank looked slippery. What more would a notice have told him? Accordingly, I reject the submission that the defender was required, in the exercise of any duty under the Act to take reasonable care, to exclude people from the site or to put up a notice warning of whatever danger was posed by the plank walkway.”

The full decision is available from Scottish Courts here.

(See appeal to Inner House here)

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Sheriff Court case concerning the sale of Harwood Estate near Bonchester Bridge in Hawick. In 2002 the trustees sought to sell part of the estate with the exception of Harwood Mill, which was being retained as a residence for Andrew Lubbock, and the lodge, which was the subject of a liferent to Georgina Lauder.   However, no mention was made of the exception of the lodge in the narrative to the disposition and title to the lodge was included within the estate title registered in favour of the purchaser, Mr Feakins in the Land Register for Scotland.

When this was discovered some years later, the trustees sought declarator that the lodge had not been included in the subjects of sale and an order that the Land Register be rectified. The trustees argued that, as the scale of the plan attached to the disposition meant it was impossible to determine whether the lodge was part of the subjects of sale, regard should be had to the intention of the parties in determining the effect of the disposition.

Although no mention was made of the exceptions in the missives or disposition, the trustees had instructed their estate agents and solicitors that the estate was to be sold with the exceptions and the trustee’s solicitors had sent a fax to the purchaser’s solicitors indicating that the mill and lodge were not included in the sale (a fact that had not been brought to Mr Feakins attention, his solicitors believing it unnecessary as he had been content with the plan which represented the subjects being purchased). The draft sales particulars had also been drawn up in a manner which neither specifically included or excluded the mill and lodge (the estate agents having taken the view that specific mention may have deterred purchasers and was unnecessary as the buildings were not within the body of the estate).

Sheriff Daniel Kelly QC found that the Register was not inaccurate as the lodge had been transferred in the disposition. Even if the disposition had been ambiguous, the lodge was amongst the property transferred in the missives. The missives had been agreed to be final[1] and it was not open to have regard to the prior intention of the parties. Further, even if the parties’ intentions had been considered, their intensions were not ‘as one’ as Mr Feakins did intend to purchase the lodge.

Finally, even had there been an inaccuracy in the Register, it would not have been open to order rectification as Mr Feakins was ‘a proprietor in possession’[2] who would have been prejudiced by the rectification. Although Miss Lauder was in natural or direct possession of the lodge, neither she nor the trustees held a registered title. Mr Feakins held title to and possessed the estate as a whole (living on it with his family and having a sheep farm there too). Mr Feakins also understood that, following the sale, Miss Lauder’s liferent was with him as fiar and he allowed her to continue to occupy the lodge. Although the Sheriff found there was difficulty in construing Miss Lauder’s occupation of the lodge as being civil possession on behalf of Mr Feakins, he nevertheless tended towards the view that Mr Feakins might be construed as a proprietor of the whole estate including the lodge.

The full report is available from the Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Inner House case concerning tripartite agreement between East Dunbartonshire Council, Bett Homes and Glasgow University. The agreement allowed the Council to sell the Bearsden Academy site to Bett for development and relocate the school to a site at St Andrews College in Bearsden which it was purchasing from the University of Glasgow.

The Council sought declarator that Bett was bound to fulfil its side of the bargain and pay the final instalment of the purchase price for Academy site. The dispute centred on whether the time was of the essence regarding the entry date on which vacant possession was to have been given to Bett. Bett argued that it was of the essence and, the Council having been unable to give vacant possession on the agreed date, it had been in material breach of contract and Bett had validly rescinded the contract. The Inner House upheld Lord Glennie’s decision finding that time was not of the essence and the contract remained live for performance.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Outer House case considering the interpretation of missives for a property in Melrose, near Galashiels. Pinecraven sought damages and interest from Mr and Mrs Taddei as a result of their failure to settle the transaction. Mr and Mrs Taddei argued that there was no concluded contract.

The crux of the Taddeis’ argument was that Pinecraven’s offer to sell contained a time limit for acceptance after which the offer would be null and void. Whilst the Taddeis’ qualified acceptance arrived within the time limit, as it contained a qualification, it was not an acceptance of the offer. Consequently, Pinecraven’s subsequent letter concluding the bargain had no effect.

Lord Kinclaven rejected the Taddeis’ arguments finding that, although the acceptance was qualified, it was still an acceptance within the meaning of the clause containing the time limit. Even if that were not the case, the Taddeis’ qualified acceptance was a counter offer which was capable of acceptance within a reasonable time, and indeed, was so accepted by Pinecraven’s letter concluding the bargain. As a result it was found that there was a concluded contract between the parties.

The full text of the decision is available from the Scottish Courts website here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Inner House case considering a planning appeal in respect of a proposed development of 12 flats by Greenland Developments on land to the south of Veitch’s  Square, Stockbridge in Edinburgh. Despite being recommended for approval by the planning officer, the application was refused as the development was deemed to be contrary to the Local Plan in various respects.  Greenland appealed to the Scottish Ministers.  Following an unaccompanied site inspection and consideration of the documentation, a Reporter refused the appeal by means of a brief decision letter. Greenland then appealed that decision. They argued:

• the Reporter had failed to provide adequate and intelligible reasons for refusing the appeal;
• the Reporter’s decision letter had failed to pay due regard to the terms of section 25 of the 1997 Act which provide that where, in making a determination under the Town and Country Planning (Scotland) Act 1997, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise;
• the handling of the appeal by the Reporter had been tainted by procedural irregularities in that the Reporter had refused a reasonable request on behalf of the appellant that she should hold an accompanied site inspection and had also refused a request that she hear part of the appeal by way of oral process;
• Regulation 4(2) of the The Town & Country Planning (Appeals) (Scotland) Regulations 2008 provides that within 21 days of receipt of notification of a Notice of Appeal, the planning authority must send to the Scottish Ministers its response to the appeal, together with associated documentation. In this case the Council had failed to do so; and
• finally, it was argued that the Reporter had erred in failing to consider whether the imposition of a relevant condition might have rendered acceptable what she otherwise considered to be an unacceptable development.

An Extra Division of the Inner House refused the appeal finding that it had been open to the Reporter to reach the findings she had. It was perfectly clear from the decision letter which findings and conclusions the Reporter had reached and why she had reached them.  She also had the discretion to refuse to have an accompanied visit and to refuse to hold an oral hearing.

With regard to s25 of the 1997 Act, although the Reporter did not specifically refer to the statutory provisions, she applied the correct legal test. She considered whether the proposed development would have a detrimental impact on the amenity of the New Town conservation area. In the light of those findings she assessed whether the proposed development complied with specified polices in the development plan, whether the proposed development would be in accordance with the development plan and whether any other material considerations warranted granting planning permission in the face of conflict with the development plan.

With regard to the Reporter’s consideration of the response by the Council to the Greenland’s Notice of Appeal, regulation 4(2) provides that, in addition to the planning authority’s response, the planning authority also require to send to the Scottish Ministers a copy of the documents which were before the planning authority in reaching their decision, a copy of any report on handling and any conditions the planning authority consider should be imposed in the event that the Reporter decides that planning permission should be granted. Given the scope of the documentation, the Extra Division did not consider that the public interest would be served if the Reporter could not take the documents into account if they were not submitted in the 21 day period.

Finally, as regards the failure to consider whether the attachment of conditions may have rendered the development acceptable, although reference to a possible condition had been made on behalf of Greenland, it had not been argued that the imposition of the condition on its own would have enabled the Reporter to reach a different conclusion. Furthermore, the information before the Reporter was not such as could have satisfied the Reporter that the householder concerned would agree to the condition or that there was any reasonable prospect that such a condition could be complied with. The possibility of any other conditions being imposed was not raised with the Reporter at any stage.

The full text of the decision is available from the Scottish Courts website here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Inner House case considering an agreement between NCP and EDI for a development at Castle Terrace car park in Edinburgh. The agreement involved EDI being interposed into a lease of the subjects between the City of Edinburgh Council and NCP in return for a capital payment of £5m and then using its close links with the City of Edinburgh Council (EDI being wholly owned by the Council) to deliver the development.

In terms of the agreement, EDI were obliged to “use all reasonable endeavours” expected of “a normal experienced prudent developer in the circumstances” to pursue the development. However, the development did not take place and, as it was entitled to do under the agreement, EDI served notice on NCP requiring NCP to buy back the tenant’s interest under the lease. NCP failed to do so contending that they were not obliged to serve the appropriate notice[1] as EDI were in material breach of the agreement having failed to comply with their obligation to use all reasonable endeavours.  NCP argued that EDI had approached the project as if they merely had an option to pursue the development rather than an obligation compelling them to undertake it. The question for the court was whether EDI had met the required standard.

The Inner House upheld Lord Glennie’s judgement that EDI had met the standard and found that the work they carried out and the assessment they reached were not significantly different from those to be expected of a normal experienced prudent developer in the circumstances. In particular, EDI could not be criticised for failing to pursue further steps in relation to any of four alternative sites since (on the evidence heard by Lord Glennie) such further steps would have been futile. It was clear from the papers available to the court that the problem of finding alternative car parking space was critical to unlocking the development and it had not been possible to identify alternative provision for car parking.

The Court also said the following on the standard of effort required from the Council:

“In our opinion it is clear that the obligation to pursue a project or seek a planning consent with all reasonable endeavours is one that requires the court to consider whether there were reasonable steps which the obligant could have taken but did not. For that reason it is a higher or more onerous obligation than one restricted to using “reasonable endeavours”. However, whether the phrase used is “all reasonable endeavours… or “reasonable  endeavours” we agree with the view expressed by Lord Hodge in MacTaggart & Mickel Homes Ltd v Hunter… that an obligation in either terms does not require the obligant to disregard its own commercial interests. Where the balance between the obligation to use reasonable endeavours and countervailing commercial considerations falls to be struck depends on the wording of the obligation in question. In considering what steps would be reasonable, the court also has to consider whether any further steps would have been successful. We agree with Lord Hodge… that if an obligant can show that it would have been useless for it to have taken a particular step (or steps), because it would not have been sufficient to achieve success, that would provide an answer to any claim that the obligant had acted in breach of contract… Equally if there was an insuperable obstacle, it is irrelevant that there may have been other obstacles which could have been overcome, or at any rate in respect of which the obligant had not yet done all that could reasonably be expected of it to try to overcome.”

 The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Sheriff court case in which Wimpey sought damages from Mr Henderson in respect of his failure to pay the purchase price for subjects at Ferry Village in Renfrew.  Mr Henderson was acting on behalf of a group of investors who were purchasing multiple properties from Wimpey. Missives were concluded on 21st December 2007.  Wimpey had been anxious to conclude missives before Christmas and put pressure on Mr Henderson to conclude.  However, although Mr Henderson was also keen to proceed, he had concerns about the state of the property market and the fact that he was purchasing before the subjects had been built as he required finance for the transaction and the amount he could borrow would depend on a valuation of the property which could not be obtained until completion of the subjects.

This led to an email exchange indicating an underlying agreement by which missives would be concluded allowing Wimpey to show the properties as sold on their accounts but by which the properties would also be re-valued during 2008. Further negotiations could then take place and the properties could, if necessary, be re-marketed by Wimpey. In particular, Wimpey made the following comment by email:

“With this in mind, I want to give you some reassurance that should the circumstances arise that there are difficulties with the valuations we will find a resolution one way or another and I suggest that against this background I would like to have a “gentleman’s agreement” that we will have valuations carried out in the new year with a view to having them all back early Feb which will be the basis of any negotiations (if need be). I just want to give you the comfort that in concluding missives now will still allow for further negotiation should the valuations necessitate this.”

And, in response to a question by Mr Henderson as to what would happen if exchange bonds (being used by the parties in place of a deposit)[1] were not in place by the end of January as had been agreed:

“I would take the view of (sic) should this happen then we remarket the properties. If the question is will we come after you then I can give assuarnce (sic) that we wont, all I need is enough notice, ie as early in the year as possible to remarket. Hope this helps.”

Further emails were exchanged in which it was agreed that a condition would be inserted into the missives providing  that, if exchange bonds were not in place by 31^st January 2008 for plot 38, then Wimpey would be entitled to withdraw from the transaction at their instance. In the course of these emails Wimpey also advised that they could agree that, should the situation arise that all Bonds were in place and the property had not achieved the values required, an agreement would be reached by both parties whereby Wimpey could remarket all or some of the properties.  They said that, in effect Wimpey would resile from the missives at no penalty to Mr Henderson expressing the hope that this would alleviate the concerns of Mr Henderson and his business partner. However, nothing to this effect was inserted into the missives.

In September 2008 valuations were obtained which were substantially below that required for Mr Henderson to obtain finance for the subjects. The parties entered into negotiations aimed at enabling the sale to proceed but no agreement was reached. Nevertheless Wimpey wrote to Mr Henderson advising that the subjects were ready for occupation and that entry should take place on 17 October 2008. Entry was not taken and Wimpey resiled from the bargain, resold the property and sought damages from Mr Henderson in terms of the missives.

Mr Henderson argued that Wimpey were personally barred from enforcing the missives and also sought rectification[2] of the missives to reflect the true agreement; in his opinion that, following a revaluation of the properties, the price could be revised or the transaction aborted.

Sheriff William Holligan found that Mr Henderson was not entitled to rectification of the missives as he was unable to show that there was a common intention[3] between the parties as to what would happen in respect of valuations were any further negotiations to fail.

“I return to the proposition that section 8 concerns a defectively expressed document. In this case it is said to be defective because it does not contain a provision as to what would happen if the negotiations failed. What then was the common intention of the parties on that issue? Viewed objectively, I find myself unable to say what that was. I have no doubt, with the benefit of hindsight, [Mr Henderson] is quite clear what he expected. However, even if [Wimpey’s sales director] accepted that his expectation might have been reasonable, I cannot conclude it reflects the common intention of both parties… The issue is one of rectification. This does not allow the court to write into a contract provisions where it is not proved both parties shared a common intention on that particular issue.”

However it was clear that, when agreeing to conclude missives, Mr Henderson had relied on the content of the emails and Wimpey were found to be personally barred from enforcing the missives:

“On any view of this matter, the missives did not reflect the whole commercial relationship between the parties. Not only did both parties know that but they both acted on the strength of it.”

And further:

“To leave [Wimpey] with the unqualified right to insist on their rights under the missives, given [Mr Henderson’s] business model, does not make commercial sense. It would make the agreement to renegotiate the price almost meaningless. Whether [Wimpey] deliberately said nothing or genuinely did not turn their minds to the issue does not matter. As I have said the matter requires to be looked at objectively. The missives said one thing: the words and to some extent the actions of [Wimpey] conveyed to [Mr Henderson] something different. To that extent there was inconsistency. The element of unfairness is largely self evident.”

A full report is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.